Highways, kerbs and intervention levels

It is of course common practice for highway authorities to have appropriate intervention criteria for defects in footways and carriageways, with various intervention levels for emergency and non-emergency defects. However, kerbs can be somewhat unusual insofar as they might just form the threshold between a footway and a carriageway as in most street scenes, or they can take on different features and purposes. For example, kerbs can merely form a boundary between a carriageway and a grass verge, or they can be utilised to account for differences in levels and drainage.

In the recent case of TW v Bridgend County Borough Council, in which Dolmans represented the Defendant Local Authority, the Trial Judge had to consider an alleged dip/defect in a back-to-back kerb specifically.

Background

The Claimant alleged that there was a dip in the surface of a kerbstone that caused her to fall as she stepped upon the same. The alleged defect was situated near the Claimant’s home.

The kerb in question was part of the adopted highway and was a back-to-back kerb designed to encourage water to drain away from adjacent properties. Hence there was a difference in levels on each side of the kerb, with the kerb protruding from both the footway and carriageway surfaces.

Claimant’s allegations and burden of proof

The Claimant alleged that the Defendant Local Authority was negligent and/or in breach of Section 41 of the Highways Act 1980.

In order to succeed in her claim, the Claimant needed to prove, on the balance of probabilities, that she fell and was injured as a result of the alleged dip, that the said dip represented a defect in the highway and that the dip was a danger to pedestrians using the said highway.

Somewhat unusually in a highways case such as this, the Claimant was able to provide CCTV evidence taken from her home, and the Defendant Local Authority had no option but to concede that the Claimant fell as a result of placing her foot into the dip as alleged.

Dangerousness

Although it was evident that the Claimant would succeed on factual causation, she still needed to prove that the dip represented a defect and was dangerous.

The Claimant provided measurements, which were disputed by the Defendant Local Authority.

It was argued that Section 41 of the Highways Act 1980 Act does not require the Defendant Local Authority to ensure all roads are kept to the standard of a bowling green, as per Dillon LJ in Mills v Barnsley Metropolitan Borough Council [1992] PIQR:

“The liability is not to ensure a bowling green which is entirely free from all irregularities or changes in level at all. The question is whether a reasonable person would regard it as presenting a real source of danger. Obviously, in theory any irregularity, any hollow or any protrusion may cause danger, but that is not the standard that is required.”

In addition, the Defendant Local Authority relied upon Dean and Chapter of Rochester Cathedral v Debell [2016] EWCA Civ 1094, in which Elias LJ stated:

“Tripping, slipping and falling are everyday occurrences on the roads and pavements. No highway authority or occupier of premises like the Cathedral in this case could possibly ensure that the roads or the precincts around a building were maintained in a pristine state. Even if they were, accidents would still happen; it is part of the human condition. There will always be some weathering and wearing away of roads, pavements and paths resulting in small divots, slopes or broken edges which might provide some kind of risk to the unwary and lead to accidents. The law does not seek to make the highway authority or the occupier of land automatically liable for injuries caused by such accidents.”

Based upon the above and for various reasons specific to the current matter, the Defendant Local Authority contended that the dip did not present a real source of danger to members of the public.

The Defendant Local Authority contended that although there were no intervention criteria specifically for such kerbs that were not at designated crossing points, the dip was below its intervention level for emergency defects in the adjacent footway in any event, as measured by the Defendant Local Authority’s Highways Officer following the Claimant’s alleged accident. It was argued that such measurements, taken by an experienced engineering technician utilising proper measuring equipment, should be preferred to the Claimant’s measurements.

Indeed, it was apparent from the Claimant’s photographs that the bottom of the tape measure utilised by the Claimant has been placed at the front of the dip and the horizontal ruler used to mark the top of the kerb had been placed towards the back of the kerb, so that the tape measure was at an angle and did not accurately illustrate the alleged difference in levels.

In any event, the Defendant Local Authority also argued that the position of the dip meant that it did not pose a real source of danger. The dip was situated on a kerbstone to the edge of the footway and was not at a point where pedestrians would regularly walk. There was no designated crossing point at the relevant location, nor was there any other indication that the relevant location was a place where pedestrians would regularly be stepping up and down the footway. The relevant location was traversed on an ad hoc and infrequent basis. In addition, it was argued that pedestrians should be anticipating a difference in levels, given the presence of the kerb and should, therefore, take more care when placing their feet.

Although there was no intervention criteria for such kerbs that were not at designated crossing points and the alleged defect was below the intervention level for emergency defects in the adjacent footway, the Defendant Local Authority repaired the relevant kerb following the Claimant’s alleged accident as a matter of prudence and given that a similar defect in the footway is likely to have resulted in a non-emergency repair.

Section 58 defence

In the event that the Court might accept that the dip was a defect rendering the relevant highway as being dangerous, the Defendant Local Authority averred that, on a balance of probabilities, it had taken such care, as in all the circumstances was reasonably required, to secure that the relevant highway was not dangerous, pursuant to Section 58 of the Highways Act 1980.

Neither the Claimant’s Litigation Friend nor any other member of the public had reported the dip as a danger prior to the Claimant’s alleged accident, also indicating, therefore, that nobody had previously identified the same as a real source of danger. There were no records of any complaints and/or other accidents at the relevant location prior to the date of the Claimant’s alleged accident.

The footway at the location of the Claimant’s alleged accident was subject to scheduled inspections and maintenance, as well as being inspected and maintained on a reactive basis. The said footway was inspected by a Highways Inspector on foot, being above and beyond the Code of Good Practice that only required driven inspections. These inspections were meaningful and, where identified, any actionable defects were noted and repaired.

At the time of the Defendant Local Authority’s combined pre-accident scheduled inspection of the relevant footway and carriageway, no actionable defects were identified at the location of the Claimant’s alleged accident. A damaged kerb that needed repair was identified at a different location, indicating that inspections extended to the furthermost edges of the footway.

Judgment

The Trial Judge took some time overnight to consider the evidence and various arguments in this particular matter, delivering his Judgment the day after submissions were given on behalf of both parties.

Given that factual causation had been conceded, the Trial Judge focused on the arguments relating to dangerousness and breach of duty accordingly.

The Trial Judge accepted that when considering dangerousness, case law indicated that it is not simply a case of measurement and there is no expectation that the footway will be completely free of defects. The Trial Judge preferred the Defendant Local Authority’s measurements of the alleged defect.

The Trial Judge also specifically considered the nature of the kerb and agreed that this was not commonly walked upon, being a back-to-back kerb with the expectation that a pedestrian would normally step over the said kerb.

The Trial Judge found that the expectation was that pedestrians would be stepping up and paying attention, so the alleged damage would be more apparent. However, the Trial Judge also held that pedestrians were not just stepping up in this particular scenario and would also be stepping down off the kerb. The Trial Judge found, therefore, that pedestrians might place their feet on the kerb and that a defect at this level/height could cause a pedestrian to lose balance and fall forward, potentially into the path of a vehicle in the carriageway. As such, the Trial Judge held that in this particular scenario, there was a defect present that did cause a reasonable foresight of harm.

Hence, the Trial Judge needed to consider the Defendant Local Authority’s Section 58 Defence. The Trial Judge found that the Defendant Local Authority’s system was reasonable and indicated that defects were being picked up for repair when actionable. The Trial Judge accepted the argument that the alleged defect could have been caused by vehicle overrun since the date of the Defendant Local Authority’s pre-accident inspection and there was no direct evidence that the alleged defect had been present at the time of the said pre-accident inspection.

The Trial Judge accepted that there were no direct intervention criteria for the kerb, only specific intervention criteria for the adjacent footways and carriageways. Whist the Trial Judge noted that, in theory, the Defendant Local Authority could introduce separate intervention criteria for the kerb, it was accepted that there are many different areas, such as grass verges that could also have specific criteria. The Trial Judge held, therefore, that this could lead to the Defendant Local Authority having a huge number of intervention criteria that would be unmanageable.

Finally, the Trial Judge also noted that the Defendant Local Authority’s Highways Inspectors received appropriate training and that their work was audited. The Defendant also had a reactive system and there were no records of any complaints and/or other accidents prior to the date of the Claimant’s alleged accident.

Taking the above into account, the Trial Judge held that, on a balance of probabilities, the Defendant Local Authority had an effective policy in place and had the protection of an appropriate Section 58 Defence. The claim was, therefore, dismissed.

Comment

Although the Trial Judge found that the alleged defect posed a risk to pedestrians in this particular matter, each case will of course be decided upon its own merits and take account of the exact circumstances of the said case. In this matter, the Trial Judge took account of the nature and location of the back-to-back kerb and the potential consequences therefore of the defect therein. However, that is not to say that a similar defect in a differently structured kerb would also pose a risk to pedestrians.

The Trial Judge understood that many different kerb structures exist and that it would be unmanageable, therefore, for the Defendant Local Authority to have various intervention criteria for each and every such kerb structure.

In any event, the Defendant Local Authority in this matter was able to rely upon an appropriate system, resulting in a successful Section 58 Defence and dismissal of the Claimant’s claim.

Tom Danter is an Associate at Dolmans Solicitors.